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Interests of Justice Guidance on the Consideration of Defence Representation Order Applications Version Issue date Last review date Owned by 2 January 2020 January 2020 Service Development Interest of Justice guidance January 2020 2 Version History Version Date Reason 1 May 2018 2 January 2020 Adding at annex A stalking protection orders to the list of matters funded under prescribed proceedings, brought into scope by the Criminal Legal Aid (General) (Amendment) Regulations 2020 that came into force on 20 January 2020. Interest of Justice guidance January 2020 3 Contents Interests of Justice 1 Contents 3 1. INTRODUCTION 5 2. GENERAL PRINCIPLES 6 3. GROUNDS FOR GRANTING LEGAL AID – THE WIDGERY CRITERIA 8 3.1 It is likely that I will lose my liberty if any matter in the proceedings is decided against me. 8 3.2 I have been given a sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence. 18 3.3 It is likely that I will lose my livelihood. 19 3.4 It is likely that I will suffer serious damage to my reputation 19 3.5 Whether the determination of any matter in the proceedings may involve consideration of a substantial question of law. 20 3.6 I may not be able to understand the proceedings or present my own case 24 3.7 The proceedings may involve the expert cross-examination of a prosecution witness (whether an expert or not) 25 3.8 It is in the interests of another person that I am represented 26 3.9 Any other reasons 27 ANNEX A 30 Interest of Justice guidance January 2020 4 1. INTRODUCTION 1. During 2008 the then Legal Services Commission in conjunction with Her Majesty’s Court Service held a number of workshops to assess current practices and training needs surrounding interests of justice decision-making for the grant of criminal legal aid. Following the workshops a meeting of experts was held to discuss ways in which greater certainty could be introduced.1 2. Guidance issued then was the outcome of that process. Its aim was to improve the quality and consistency of decision-making. Whilst it is addressed to and written primarily for LAA staff that grant and refuse legal aid, it will also assist applicants and their solicitors. 3. Following discussions with Representative Bodies the guidance has been amended further in 2018 to provide clarity on a number of issues. 4. This revised guidance is national guidance by the Legal Aid Agency. It replaces all other guidance and should be followed by LAA staff, Providers and applicants alike. All other guidance, whether national or local, should be disregarded. 1 HMCTS and the LAA would also like to acknowledge the advice & assistance of Professor Richard Young of the University of Bristol in the preparation of this guidance. Interest of Justice guidance January 2020 5 2. GENERAL PRINCIPLES 1. Criminal legal aid may be granted for proceedings before any court in favour of any individual accused or convicted of a criminal offence. Criminal legal aid also extends to other non-criminal proceedings, which include those set out in section 14 of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 (e.g. proceedings in relation to a bindover or contempt of court) and certain 'prescribed proceedings' listed in regulations.2 2. Under the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 legal aid should, subject to means testing, be granted in cases only where it is in the interests of justice for the defendant to be represented. Each application for legal aid must be considered individually, and decision-makers must weigh up all the relevant factors. 3. A list of factors which must be taken into account (known as the Widgery criteria) are contained in Section 17(2) of the Act and these are reproduced on legal aid application forms. Decision-makers may consider additional factors not on this list, but they must be relevant to the interests of justice. Applicants must make clear on application forms the factors on which they are relying. 4. In some cases two or more factors may combine together to justify a decision to grant when neither by itself would have sufficed. When such a combination is relied upon, this should clearly be noted on the application form. Providing sufficient information 5. It is the responsibility of the applicant, usually with the assistance of a solicitor, to provide sufficient relevant information to support an application. Where insufficient information is provided, the application should be refused (and be recorded as a refusal for statistical purposes) rather than returned. This should be communicated to the applicant who may wish to provide additional information. Whilst it is acknowledged that a need to re-apply may initially cause some delay and an increase in administration, it will also encourage applicants to provide sufficient information at the outset, resulting in longer term efficiency. 6. It should be remembered that the Legal Aid Agency does not have access to Police National Computer records or Court records. Nor do they know the client or his/her circumstances, they rely wholly on the information provided in the application. For the avoidance of doubt the Legal Aid Agency will have no details of any previous convictions for the client, or any other details about the nature of the allegations other than that which is provided with the application. Giving applicants the benefit of the doubt 7. If, after considering all the relevant factors the decision to grant is finely balanced, then the applicant should be given the benefit of the doubt and legal aid granted. This will apply only when there is enough detail on the application form for a competent decision to be taken. The benefit of the doubt should not be used to fill gaps in information which applicants should provide. It is not a requirement that a list of previous convictions be provided as these are often not available at the time the application is submitted. However, if reliance is placed upon previous convictions, it is important that sufficient information about them is given (i.e. approximate date, court, charge, sentence etc. See para 33 below). Co-defendants 2 See Annex A Interest of Justice guidance January 2020 6 8. If a case involves co-defendants, the applicant should instruct the same solicitor as the co- defendant(s) unless there is, or is likely to be, a conflict of interest.3 The application form requires the applicant to state the reasons why he and his co-defendants cannot be represented by the same solicitor. The most common reasons are that one defendant is blaming the other or they are running incompatible defences (e.g. one says the fight never happened, the other says there was a fight, but he was defending himself). Cases in the Crown Court 9. With the introduction of means testing in the Crown Court, the interests of justice test is automatically met in all cases which are committed, sent, or transferred to the Crown Court. In such cases, the interests of justice test is ‘Passported’ and these applications are subject to the means test only. There is one exception, being that of appeals to the Crown Court against conviction or sentence. Such applications should be subject to both the interests of justice test and the means test. Equality of Arms 10. The principle of ‘equality of arms’ is important for Legal Aid, it refers to the legal principle that a defendant must have an effective opportunity to present his own case to the court under conditions which do not place him at a substantial disadvantage in relation to the prosecution. 11. The fact that the prosecution case will be presented by a professional prosecutor is not a good reason, in itself, to conclude that an unrepresented defendant is at a substantial disadvantage.4 The law governing criminal legal aid clearly envisages a class of cases which should not attract publicly funded legal representation. The issues (if any) in these cases will typically be narrow and straightforward enough such that any disadvantage to an unrepresented defendant would be less than substantial. Legal advisers in magistrates’ courts have a legal duty to assist unrepresented defendants. Information available at the time that instructions are taken 12. A decision about whether legal aid is granted should take into account the situation known at the time of taking the instructions and not use the benefit of hindsight. 13. In cases where the hearing has concluded before the application has been determined, the outcome of the hearing should not be the deciding factor in assessing whether or not the interests of justice test is satisfied. If loss of liberty was likely at the outset then the application will have satisfied the test notwithstanding the fact that the defendant was released, perhaps as a result of the solicitor’s representations. Role of the Legal Adviser 14. The primary role is to provide the magistrates with advice to assist them with their function and role. This includes questions of law and procedure, questions of mixed law and fact, penalties available and other issues relevant to the matter before court. A legal adviser has a duty to ensure that every case is conducted fairly and is also under a duty to assist unrepresented parties to present their case. They must do so without appearing to become an advocate for the party concerned and should not affect the granting of Legal Aid if the criteria are met. In addition to this at the stage of plea, a legal adviser will advise a defendant in respect of credit available for timely guilty pleas.

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